SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Burow v The Queen |
Citation: | [2015] ACTCA 61 |
Hearing Date: | 11 August 2015 |
DecisionDate: | 16 December 2015 |
Before: | Penfold, Gilmour JJ and Walmsley AJ |
Decision: | The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – driving with a prescribed concentration of alcohol in blood or breath – s 19 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) – where the sentencing Magistrate declined to reduce the automatic disqualification period. PRACTICE AND PROCEDURE – Appeal – jurisdiction – where Supreme Court ruled it had no jurisdiction to hear the appeal – jurisdiction of the Supreme Court to hear an appeal – whether whether order “imposed” by the Magistrates Court – s 208(1)(d) of the Magistrates Court Act 1930 (ACT) – meaning of “order to disqualify” – s 208(1)(g) of the Magistrates Court Act 1930 (ACT) – jurisdiction under s 20 of the Supreme Court Act 1933 (ACT). |
Legislation Cited: | Court of Petty Sessions Ordinance 1930-1971 (ACT), s 208A(1) |
Cases Cited: | ACT DPP v McDowall [2002] ACTSC 72 Attorney-General’s Application (No 3 of 2002) (2004) 61 NSWLR 305 Westbrook v The Queen (Unreported, Australian Capital Territory Supreme Court, Crispin J, 18 July 2000) |
Parties: | Luke Burow (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Mr J White SC (Respondent) |
| Solicitors Paul Edmonds & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 11 of 2015 |
Decision under appeal: | Court: ACT Supreme Court Before: Refshauge J Date of Decision: 20 February 2015 Case Title: Burow v Hoyer Citation: [2015] ACTSC 21 |
THE COURT
Background
On 28 November 2013 the appellant…
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- Burow v The Queen [2015] ACTCA 61
- Case
- [2015] ACTCA 61
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Supreme Court of the Australian Capital Territory were whether the Supreme Court had jurisdiction to hear the appeal. This involved interpreting the meaning of an "order to disqualify" under s 208(1)(d) of the *Magistrates Court Act 1930* (ACT) and whether the Magistrate's refusal to reduce the automatic disqualification period constituted such an order. The Court also considered its appellate jurisdiction under s 20 of the *Supreme Court Act 1933* (ACT).
The Court reasoned that the automatic disqualification period imposed by s 19 of the *Road Transport (Alcohol and Drugs) Act 1977* (ACT) was a statutory consequence of the conviction, not an order made by the Magistrate in the exercise of their discretion. Therefore, the Magistrate's refusal to reduce this period did not amount to an "order to disqualify" within the meaning of s 208(1)(d) of the *Magistrates Court Act 1930* (ACT). Consequently, the Supreme Court held that it lacked jurisdiction to entertain the appeal.
The appeal was dismissed.
Orders
Orders of the court
The appeal is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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